Casino lawsuit remains certain

BOSTON — Even if the Massachusetts Gaming Commission opens Southeastern Massachusetts to commercial casino bids next week, it's unlikely to be the end of a lawsuit brought by one of the potential bidders.

The tribe has asked the commission to publicly release a list of the legislators the board consulted about how long the Legislature intends to give the tribe to pursue its federal rights. Commission Chairman Stephen Crosby has refused to release it, Cromwell said.

"By paving the way for four casinos instead of three in Massachusetts, plus a slot parlor, the commission has the potential to threaten the economic model on which the entire Expanded Gaming Act is based," Cromwell said. "Therefore, it only seems reasonable that the tribe and the public be made fully aware of the advice on which the commission is relying to essentially ignore the legislative intent in making such an important decision."

In a response provided by the commission, Crosby tells the tribe he spoke only with legislators involved in crafting the legislation, but he does not name them.

GEORGE BRENNAN

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BOSTON — Even if the Massachusetts Gaming Commission opens Southeastern Massachusetts to commercial casino bids next week, it's unlikely to be the end of a lawsuit brought by one of the potential bidders.

At a status hearing Thursday in U.S. District Court, Paul Clement, a lawyer for KG Urban Enterprises, said his client would follow through and seek a ruling on whether the state's Expanded Gaming Act and, specifically, its set-aside for a federally recognized Indian tribe, violates the Equal Protection Clause of the U.S. Constitution.

KG Urban would like to build a casino in New Bedford, but has been stymied by the Mashpee Wampanoag Tribe's exclusive rights to Southeastern Massachusetts, known as Region C in the state law.

KG Urban filed suit in November 2011, on the day the casino act was signed.

The tribe has a proposal to build a $500 million casino in Taunton under federal regulations, which requires that the tribe have land taken into federal trust by the Bureau of Indian Affairs — a complicated process with no set deadlines. A compact between Gov. Deval Patrick and the tribe is before the state Legislature for review, but has not yet been scheduled for a vote. The compact also requires approval by the Bureau of Indian Affairs.

The commission is expected to vote Thursday during its weekly meeting on whether to open Region C. The meeting will be held in Palmer, the location of a proposed casino in Western Massachusetts — 130 miles from the tribe's headquarters in Mashpee.

Opening Region C to commercial bids would likely lead to a lawsuit by the tribe in state court, leaving KG Urban vulnerable unless there is a federal court ruling, Clement said.

"My message would be full speed ahead" with the lawsuit, he said.

The courtroom was filled with more than a dozen attorneys for KG Urban, the Mashpee tribe, the Wampanoag Tribe of Gay Head (Aquinnah) and state lawyers. The town of Aquinnah and the Aquinnah/Gay Head Community Association were also represented.

Both the Mashpee and Aquinnah tribes have filed motions to intervene in the suit to protect their interests. If that's allowed, the town of Aquinnah and members of the association want their interests protected in the case, as well.

Judge Nathaniel Gorton took no action Thursday, but asked the lawyers to share guidelines by April 23 for how they would like him to proceed.

Gorton was seeking clarity on where the case stands, but got little. Two lawyers for the state — one representing the governor's office and the other representing the commission — are arguing conflicting views, a situation one of them described as "awkward."

Patrick wants to give the tribe more time to meet its federal hurdles, while the gaming commission appears ready to pull the plug.

It was the first court hearing in nearly four months. In December, the judge delayed the case after the gaming commission gave the tribe 90 days to renegotiate its compact with the state.

At issue now is the potential legal tangle that faces the tribe and how time-consuming the process could become.

Daniel Hammond, an assistant attorney general for the state, said much of the timeline for the tribe's federal process is only a "best guess" and "opaque."

Howard Cooper, an attorney for the Mashpee Wampanoag, pointed to progress made by the tribe, including an advisory opinion that its land in Taunton fits as an initial reservation. Just what impact a U.S. Supreme Court ruling, known as the Carcieri decision, will have on the tribe is also under review and is a "top priority" for the Bureau of Indian Affairs, Cooper said.

"From the tribe's perspective and the perspective of anyone familiar with this process, they've made historic and swift progress," Cooper said. He said a decision on the land application could come by early 2014.

The tribe plans to supply Gorton with copies of letters issued by the bureau backing those claims, one of which says a decision on Carcieri will be made by "early 2013," he said.

"We're already through early 2013," Gorton said during a light moment.

Clement, the attorney for KG Urban, described the timeline presented by the Mashpee Wampanoag in court as "wishful thinking."